Preview
FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024
Exhibit D
FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024
NYC DEPARTMENT OF FINANCE
OFFICE OF THE CITY REGISTER
This page is part of the instrument. The City
Register will rely on the information provided
by you on this page for purposes of indexing
this instrument.The information on this page
will control for indexing purposes in the event
of any conflict with the rest of the document.
2018081000164001001E4CE3
RECORDING AND ENDORSEMENT COVER PAGE PAGE 1 OF 46
Document ID: 2018081000164001 Document Date: 07-31-2018 Preparation Date: 08-10-2018
Document Type: MORTGAGE
Document Page Count: 45
PRESENTER: RETURN TO:
FEDERAL STANDARD ABSTRACT, INC. (PICK-UP) HAHN & HESSEN LLP
136-36 MAIN STREET ATTN: RHONA J KISCH, ESQ
FLUSHING, NY 11354 488 MADISON AVENUE
718-888-7778 NEW YORK, NY 10022
RECORDING@FEDERALS TANDARDAB STRACT. C OM FSA168-05411Q/VC
PROPERTY DATA
Borough Block Lot Unit Address
QUEENS 374 12 Entire Lot 37-21 32ND STREET
Property Type: COMMERCIAL REAL ESTATE
CROSS REFERENCE DATA
CRFN or DocumentID Or Year Reel Page or File Number
PARTIES
MORTGAGOR/BORROWER: MORTGAGEE/LENDER:
SHANGRI-LA ASTORIA INC. CATHAY BANK
3626 MAIN STREET STE 3A A CALIFORNIA BANKING CORPORATION, 235 5TH
FLUSHING, NY 11354 AVENUE
NEW YORK, NY 10016
FEES AND TAXES
Mortgage: Filing Fee:
Mortgage Amount: $ 23,000,000.00 $ 0.00
Taxable Mortgage Amount: $ 23,000,000.00 NYC Real Property Transfer Tax:
Exemption: $ 0.00
TAXES: County (Basic): $ 115,000.00 NYS Real Estate Transfer Tax:
City (Additional): $ 258,750.00 $ 0.00
Spec (Additional): $ 57,500.00 RECORDED OR FILED IN THE OFFICE
TASF: $ 0.00 OF THE CITY REGISTER OF THE
000.00 '
14369,750.00 CITY OF NEW YORK
NYCTA : $ , 4 Recorded/Filed 08-13-2018 15:24
Additional MRT: ... , City Register File No.(CRFN):
TOTAL: $ 644.000.00 , 2018000270762
Recording Fee: $ 262.00
Affidavit Fee: $ 0.00
City Register Official Signature
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rnovr9oie 4-001 eiaPD0.9.
BUILDING LOAN MORTGAGE AND SECURITY AGREEMENT
Dated: As of July 7/, 2018
in the amount of
$23,000,000.00
from
SHANGRI-LA ASTORIA INC.
a New York corporation,
as Mortgagor,
having an office at:
3626 Main Street, Suite 3A, Flushing, New York 11354
to
CATHAY BANK
a California banking corporation,
as Lender, as Mortgagee
having an office at:
235 Fifth Avenue, New York, New York 10016
LOCATION OF PREMISES:
Street Address •. 37-21 32nd Street
County of .• Queens
City of .- New York
State of • New York
Block 374
Lots 12
After recording, please return to:
Hahn & Hessen LLP
488 Madison Avenue
New York, New York 10022
Attention: Rhona J. Kisch, Esq.
175017/003-6944618.7
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BUILDING LOAN MORTGAGE AND SECURITY AGREEMENT (this
"Mortgage"), dated as of July ?/, 2018, by and between SHANGRI-LA ASTORIA INC.,
a New York corporation, having an address at 3626 Main Street, Suite 3A, Flushing, New
York 11354 ("Mortgagor"), and CATHAY BANK, a national banking association, having
an office at 235 Fifth Avenue, New York, New York 10016, as Lender under the Building
Loan Agreement (hereinafter defined), (together with its successors in such capacity, the
"Mortgagee"). All capitalized terms used but not otherwise defined in this Mortgage shall
have the meanings ascribed to them in the Building Loan Agreement.
WITNES SETH:
WHEREAS, Mortgagor is the owner of that certain parcel of real property described
in Schedule A attached hereto and made a part hereof;
WHEREAS, Mortgagor and Mortgagee are parties to a Building Loan Agreement,
dated as of the date hereof, (as same may be hereinafter amended, modified, restated,
replaced or supplemented from time to time, the "Building Loan Agreement"), providing,
inter alia, for a certain loan in the maximum principal amount of up to TWENTY-THREE
MILLION AND 00/100 DOLLARS ($23,000,000.00) (the "Mortgage Amount"), as
evidenced by that certain Building Loan Note, dated of even date herewith (as same may be
hereinafter amended, modified, restated, replaced or supplemented from time to time, the
"Note"), in favor of the Lender;
WHEREAS, to secure the payment of the indebtedness under the Note in the
Mortgage Amount, together with interest thereon at the interest rate or rates set forth in the
Building Loan Agreement, and together with any other sums that may become due and
payable hereunder or under the Building Loan Agreement, the Note or the other Loan
Documents (as hereinafter defined), and to secure the performance by Mortgagor of its
obligations hereunder, under the Building Loan Agreement, the Note and the other Loan
Documents, Mortgagor has agreed to execute and deliver this Mortgage to Mortgagee; and
WHEREAS, Mortgagor and Mortgagee wish to secure the amounts advanced or to
be advanced pursuant to the Building Loan Agreement, as evidenced by the Note.
Certain Definitions
As used in this Mortgage, unless the context otherwise specifies or requires, the
following terms shall have the meanings herein specified, such definitions to be applicable
equally to the singular and to the plural forms of such terms.
"Access Laws" shall have the meaning accorded such term in Section 1.24 of
this Mortgage.
"Additional Interest" means all payments required to be made by Borrower
under a Hedging Contract.
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"Affiliate Cotmterparty" means a Person who is an Affiliate of Mortgagee at
the time such Person entered into any Hedging Contract.
"Agreements" shall mean all agreements, contracts, certificates, instruments,
franchises, permits, licenses, plans, specifications, warranties, guarantees, and other
documents, now or hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the Land and
any part thereof and any Improvements or respecting any business or activity conducted at
the Premises or any part thereof, or relating to any of the Chattels, and all right, title and
interest of Mortgagor therein and thereunder, including, without limitation, the right, upon
the happening of an Event of Default hereunder, to receive and collect any sums payable to
Mortgagor thereunder.
"Architect" shall have the meaning accorded such term in Section 1.09(e) of
this Mortgage.
"Building Loan" shall mean the loan from Mortgagee to Mortgagor pursuant
to the Building Loan Agreement and evidenced by the Note, which is being secured by,
among other things, this Mortgage.
"CERCLA" shall have the meaning accorded such term in Section 1.22 of
this Mortgage.
"Chattels" shall mean the Equipment, the Fixtures and the Personal
Property.
"Claim" shall mean any action, claim, counterclaim, cross-claim, cause of
action, suit, liability, demand, loss, expense, penalty, fine, judgment or other cost of any
kind or nature whatsoever, including, without limitation, all fees, costs and expenses
incurred in connection therewith of attorneys, consultants, contractors and experts.
"Code" shall mean the Uniform Commercial Code in effect in the State of
New York, as amended from time to time.
"Construction Period" shall mean the period from the date hereof to the
completion of the Improvements required to be built pursuant to the terms and conditions of
the Building Loan Agreement.
"Default Rate" shall mean the Interest Rate provided in the Building Loan
Agreement plus five (5%) percent per annum, but in no event to exceed the maximum rate
allowed by law.
"Easements" shall mean all easements, rights-of-way or use, rights, strips and
gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights
and powers, air rights, mineral rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the
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Land and/or the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road or avenue, opened or proposed,
in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles,
interest, dower and rights of dower, curtesy and rights of curtesy, property, possession,
claim and demand whatsoever, both at law and in equity, of Mortgagor of, in and to the
Land and/or the Improvements and every part and parcel thereof, with the appurtenances
thereto.
"Environmental Laws" shall have the meaning accorded such term in
Section 1.22 of this Mortgage.
"Equipment" shall mean all "equipment," as such term is defmed in Article 9
of the Code, now owned or hereafter acquired by Mortgagor, which is used at or in
connection with the Improvements or the Land or is located thereon or therein (including,
but not limited to, all machinery, equipment, furnishing, and electronic data-processing and
other office equipment now owned or hereafter acquired by the Mortgagor and any and all
additions, substitutions and replacements of any of the foregoing), together with all
attachments, components, parts, equipment and accessories installed thereon or affixed
thereto. Notwithstanding the foregoing, Equipment shall not include any property
belonging to tenants under leases at the Premises, except to the extent that the Mortgagor
shall have any rights or interest therein.
"Events of Default" shall mean the events and circumstances described as
such in Section 2.01 hereof.
"Executive Order" shall have the meaning accorded such term in Section
1.26 of this Mortgage.
"Expenses" shall mean all out-of-pocket fees, charges, costs and expenses of
any nature whatsoever incurred at any time and from time to time (whether before or after
an Event of Default) by Mortgagee in making, funding, administering or modifying the
Building Loan, in negotiating or entering into any "workout" of the Building Loan, or in
exercising or enforcing any rights, powers and remedies provided in this Mortgage or any of
the other Loan Documents, including, without limitation, reasonable attorneys' fees and
expenses, court costs, receiver's fees, management fees and costs incurred in the repair,
maintenance and operation of, or taking possession of, or selling, all or any part of the
Mortgaged Property.
"Fixtures" shall mean all Equipment now owned, or the ownership of which
is hereafter acquired, by Mortgagor which is so related to the Land and/or Improvements
that it is deemed fixtures or real property under the law of the particular state in which the
Equipment is located, including, without limitation, all building or construction materials
intended for construction, reconstruction, alteration or repair of or installation at the
Premises, construction equipment, appliances, machinery, plant equipment, fittings,
apparatuses, fixtures and other items now or hereafter attached to, installed in or used in
connection with (temporarily or permanently) any of the Premises, including, but not
limited to, engines, devices for the operation of pumps, pipes, plumbing, cleaning, call and
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sprinkler systems, fire extinguishing apparatuses and equipment, heating, ventilating,
plumbing, laundry, incinerating, electrical, air conditioning and air cooling equipment and
systems, gas and electric machinery, appurtenances and equipment, pollution control
equipment, security systems, disposals, dishwashers, refrigerators and ranges, recreational
equipment and facilities of all kinds, and water, gas, electrical, storm and sanitary sewer
facilities, utility lines and equipment (whether owned individually or jointly with others,
and, if owned jointly, to the extent of the Mortgagor's interest therein) and all other utilities
whether or not situated in Easements, all water tanks, water supply, water power sites, fuel
stations, fuel tanks, fuel supply, and all other structures, together with all accessions,
appurtenances, additions, replacements, betterments and substitutions for any of the
foregoing and the proceeds thereof. Notwithstanding the foregoing, "Fixtures" shall not
include any property which tenants are entitled to remove pursuant to leases at the
Premises, except to the extent that Mortgagor shall have any right or interest therein.
"Guarantor" or "Guarantors" shall mean the party or parties identified as
such in the Building Loan Agreement.
"Hazardous Materials" shall have the meaning accorded such term in
Section 1.22 of this Mortgage.
"fledging Contract" means each ISDA Master Agreement and schedules and
related confirmation and/or any other documents, instruments, or agreements executed to
further evidence or secure the Hedging Obligations as the same may be hereafter amended,
restated, renewed, replaced, supplemented or otherwise modified from time to time.
"Hedging Counterparty" — Any Affiliate Counterparty or any other Affiliate
of Mortgagee, or other party approved by Mortgagee, under any Hedging Contract.
"Hedging Obligations" means all obligations of Borrower to Mortgagee or
any Affiliate Counterparty or any other Affiliate of Mortgagee, or other party approved by
Mortgagee, under any agreement, contract or transaction that constitutes a "swap" within
the meaning of Section la(47) of the Commodity Exchange Act and shall include any
interest rate swap transactions, basis swaps, forward rate transactions, commodity swaps,
commodity options, equity or equity index swaps, equity or equity index options, bond
options, interest rate options, foreign exchange transactions, cap transactions, floor
transactions, collar transactions, forward transactions, currency swap transactions, cross-
currency rate swap transactions, currency options or similar agreements including the
Hedging Contracts.
"Impositions" shall have the meaning accorded such term in Section 1.07 of
this Mortgage.
"Impound Account" shall have the meaning accorded such term in Section
1.09(c) of this Mortgage.
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"Improvements" shall mean all structures, buildings, additions, extensions,
modifications and all other improvements of any kind whatsoever, and replacements of any
of the foregoing, now or hereafter located at or upon the Land.
"Insurance Policies" shall have the meaning accorded such term in Section
1.09 of this Mortgage.
"Indebtedness" shall have the meaning accorded such term in the Granting
Clause of this Mortgage.
"Intangibles" shall mean all "general intangibles" (as such quoted term is
defined in the Code) in any way relating to the Premises, or any part thereof, and that
Mortgagor owns, including, without limitation, all intellectual property, goodwill and books
and records relating to the business operated or to be operated on the Premises or any part
thereof, together with all unearned premiums, accrued, accruing or to accrue under all
insurance policies now or hereafter obtained by the Mortgagor insuring the Mortgaged
Property and all rights and interest of Mortgagor thereunder.
"Land" shall mean the real property described in Schedule A attached hereto
and by this reference, made a part hereof, including, without limitation, all of the air space,
easements, rights, privileges, royalties and appurtenances thereunto belonging or in anywise
appertaining thereto, and all of the estate, right, title, interest, claim or demand whatsoever
of Mortgagor therein and in the streets, alleys and ways adjacent thereto, either at law or in
equity, in possession or expectancy, now or hereafter acquired.
"Loan Documents" shall mean this Mortgage, the Building Loan Agreement,
the Note, the Guaranty, that certain ADA and Environmental Indemnity, dated of even
date herewith, executed and delivered by Mortgagor among others, that certain Assignment
of Leases and Rents, dated of even date herewith, executed and delivered by Mortgagor in
favor of Mortgagee, all Uniform Commercial Code financing statements in respect of the
Mortgaged Property and all other documents, agreements, instruments, certificates, title
policies and the like securing and/or evidencing the Mortgage Amount and other
Indebtedness and/or executed and/or delivered by or on behalf of the Mortgagor in
connection with the closing of the Building Loan or at any time thereafter, including
without limitation all Loan Documents as such term is defined in the Loan Agreement.
"Major Work" shall have the meaning accorded such term in Section 1.09(e)
of this Mortgage.
"Mortgaged Property" shall have the meaning accorded such term in the
Granting Clause of this Mortgage.
"Mortgagor Equity Owner" shall have the meaning accorded such term in
Section 1.25 of this Mortgage.
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"Person" shall mean an individual, a corporation, a partnership, a joint
venture, a limited liability company, a trust, an unincorporated association, any
governmental authority or any other entity.
"Personal Property" shall mean all furniture, furnishings, objects of art,
machinery, goods, tools, supplies, appliances, contract rights, accounts, including, without
limitation, all bank accounts maintained by or on behalf of Mortgagor, the Impound
Account (as hereafter defined), if any, and any other accounts established pursuant to any of
the Loan Documents, accounts receivable, franchises, licenses, certificates and permits, and
all other personal property of any kind or character whatsoever (as defined in and subject to
the provisions of the Code), other than Fixtures, which are now or hereafter owned by
Mortgagor and which are located within or about the Premises, together with all
accessories, replacements and substitutions thereto or therefor and the proceeds thereof, and
the right, title and interest of Mortgagor in and to any of the Personal Property which may
be subject to the lien of any security interest, as defined in the Code, superior to the lien of
this Mortgage, and all proceeds and products of the foregoing.
"Power of Sale" shall mean the right, power and authority of the Mortgagee
to sell or cause the sale of the Mortgaged Property and/or a part or parts thereof, at a public
sale or auction, after any Event of Default and in accordance with and pursuant to Article
14 of the Real Property Actions and Proceedings Laws of the State of New York, as the
same may hereafter be modified or amended, and/or under and pursuant to any other rules,
laws, regulations now in effect and/or hereafter enacted, which provides for or enables the
property encumbered by a mortgage to be sold by a mortgagee and/or its agents and/or
representatives in a public and/or private non-judicial sale.
"Premises" shall mean, collectively, the Land and the Improvements.
"Prohibited Person" shall have the meaning accorded such term in Section
1.26 of this Mortgage.
"Transfer" shall have the meaning accorded such term in Section 1.25 of this
Mortgage.
"Work" shall have the meaning accorded such term in Section 1.09(e) of this
Mortgage.
All terms of this Mortgage which are not defined above shall have the respective
meanings accorded such terms in this Mortgage.
Granting Clause
NOW, THEREFORE, Mortgagor and Mortgagee agree that Mortgagor, in
consideration of the premises and in order to secure payment of the principal of the Note
and the interest and any and all other sums payable on the Note, under this Mortgage or the
other Loan Documents, and all Hedging Obligations (excluding, in each case with respect
to any Loan Party, any Excluded Hedging Obligations of such Loan Party) as well as,
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without limitation, any and all Obligations (as such term is defined in the Building Loan
Agreement), Additional Interest, all loans, advances, indebtedness, notes, liabilities, and all
other amounts, in each case, liquidated or unliquidated, owing by Mortgagor to Mortgagee
or any Affiliate Counterparty or any other Affiliate of Mortgagee any time, of each and
every kind, nature and description, whether arising under this Mortgage or otherwise, and
whether secured or unsecured, direct or indirect (that is, whether the same are due directly
by Mortgagor to Mortgagee or any Affiliate Counterparty or any other Affiliate thereof; or
are due indirectly by Mortgagor to Mortgagee or any Affiliate Counterparty or any other
Affiliate thereof as endorser, guarantor or other surety, or as borrower of obligations due
third Persons which have been endorsed or assigned to Mortgagee or any Affiliate
Counterparty or any other Affiliate thereof, or otherwise), absolute or contingent, due or to
become due, now existing or hereafter arising or contracted, including, without limitation,
payment when due of all amounts outstanding respecting any of the Loan Documents or
any Hedging Contract and the performance and observance of all the other provisions
hereof, of the Note, the other Loan Documents and any Hedging Contract (all of the
aforesaid are hereinafter collectively, the "Indebtedness"), hereby gives, grants, mortgages,
bargains, sells, warrants, aliens, remises, releases, conveys, assigns, transfers, hypothecates,
deposits, pledges, sets over and confirms unto Mortgagee for itself and as agent for any
Affiliate Counterparty or any other Affiliate holding any Obligations, and its successors and
assigns, except for those permitted encumbrances and other matters set forth on Schedule B
of the title insurance policy insuring the lien of this Mortgage (collectively, the "Permitted
Encumbrances"), all its estate, right, title and interest in, to and under any and all of the
following described property (collectively, the "Mortgaged Property"), whether now owned
or held or hereafter acquired:
(a) the Land;
(b) the Improvements;
(c) the Easements;
(d) the Chattels;
(e) the Intangibles;
(f) the Agreements;
(g) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Premises, whether from the exercise of
the right of eminent domain or condemnation (including but not limited to any transfer
made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for
any other injury to or decrease in the value of the Premises;
(h) all proceeds in respect of the Mortgaged Property under any insurance
policies covering the Mortgaged Property, including, without limitation, the right to receive
and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for
damage to the Mortgaged Property;
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(i) all refunds, rebates or credits in connection with reduction in real
estate taxes and assessments charged against the Premises as a result of tax certiorari or any
applications or proceedings for reduction or otherwise;
(j) all leases and other agreements affecting the use, enjoyment or
occupancy of the Premises or any part thereof heretofore or hereafter entered into
(collectively, the "Leases") and all right, title and interest of Mortgagor therein and
thereunder, including, without limitation, cash, letters of credit or securities deposited
thereunder to secure the performance by the lessees of their obligations thereunder and all
rents, additional rents, revenues, income, issues and profits (including all oil and gas or
other mineral royalties and bonuses) from the Land and the Improvements (collectively, the
"Rents") and all proceeds from the sale or other disposition of the Leases;
(k) the right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property and to
commence any action or proceeding to protect the interest of the Mortgagee in the
Mortgaged Property; and
(I) all proceeds of any of the foregoing converted into cash, property,
claims or otherwise.
TO HAVE AND TO HOLD unto the Mortgagee and its successors and assigns,
forever to its and their own proper use and behoof; and the Mortgagor also does for itself, its
successors and assigns, covenant with the Mortgagee, and its successors and assigns, that at
and until the ensealing of these presents it is well seized of the Premises in fee simple, and
has good right to bargain and sell the same and that the same are free from all
encumbrances whatsoever except for Permitted Encumbrances.
ARTICLE I.
Particular Covenants of the Mortgagor
The Mortgagor represents, warrants, covenants and agrees as follows:
SECTION 1.01. The Mortgagor represents and warrants that it has a good and
marketable title to an indefeasible fee estate in the Premises subject to no lien, charge or
encumbrance, other than the Permitted Encumbrances; that it will own the Chattels free and
clear of liens and claims; that this Mortgage is and will remain a valid and enforceable first
lien on the Mortgaged Property subject only to the exceptions referred to above or in
Schedule A; that the execution and delivery of this Mortgage, the Note and the other Loan
Documents has been duly authorized by the Mortgagor and that there is no provision in any
document relating to Mortgagor that evidences or establishes the existence of the Mortgagor
requiring further consent for such action by any other entity or person; that it is duly
organized, validly existing and is in good standing under the laws of the state of its
organization; that it has (i) all necessary licenses, authorizations, registrations, permits
and/or approvals and (ii) full power and authority to own its properties and carry on its
business as presently conducted and the execution and delivery by it of and performance of
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its obligations under this Mortgage, the Note and the other Loan Documents will not result
in the Mortgagor being in default under any provisions of any document which evidences or
establishes the existence of the Mortgagor or of any mortgage, credit or other agreement to
which the Mortgagor is a party or by which it is bound or that affects the Mortgagor or the
Premises, or any part thereof; that it will preserve such title, and will forever warrant and
defend the same to the Mortgagee and its successors and assigns, and will forever warrant
and defend the validity and priority of such lien hereof against the claims of all persons and
parties whomsoever subject only to the Permitted Encumbrances.
SECTION 1.02. (a) The Mortgagor will, at the sole cost and expense of the
Mortgagor, and without expense to the Mortgagee, do, execute, acknowledge and deliver all
and every such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, transfers and assurances as the Mortgagee shall from time to time reasonably
require, for the better assuring, conveying, mortgaging, assigning, transferring and
confirming unto the Mortgagee the property and rights hereby conveyed, mortgaged or
assigned or intended now or hereafter so to be, or that the Mortgagor may be or may
hereafter become bound to convey, mortgage or assign to the Mortgagee, or for more
effectively carrying out the intention or facilitating the performance of the terms of this
Mortgage, or for recording this Mortgage and, on demand, will execute and deliver and
hereby authorizes the Mortgagee to execute and record in the name of the Mortgagor to the
extent it may be lawful to do so, chattel mortgages or comparable security instruments to
evidence more effectively the lien hereof upon the Mortgaged Property or any part thereof.
The Mortgagor will also, at the Mortgagee's request, sign any affidavits or other documents
or instruments which may be necessary to maintain the priority of the lien of this Mortgage
with respect to the Mortgaged Property or any part thereof, or to release or enforce such
lien, including but not limited to any amendments, corrections, deletions or additions to this
Mortgage.
(b) The Mortgagor expressly agrees, intending that the Mortgagee rely
thereon, that this Mortgage shall also constitute a "security agreement," as such term is
defined in the Code with respect to the Chattels, Intangibles and other Mortgaged Property.
Mortgagor further expressly agrees, intending that Mortgagee rely thereon, that this
Mortgage, to the extent permitted by law, shall also constitute a "financing statement," as
such term is defined in the Code with respect to the Fixtures. By its execution of this
Mortgage, the Mortgagor hereby authorizes the Mortgagee to file and/or record this
Mortgage as a security instrument and fixture filing with respect to the Mortgaged Property
or any part thereof, and authorizes the Mortgagee to file one or more financing statements,
amendments, fixture filings, renewals or continuation statements with respect to the
Mortgaged Property or any part thereof, and authorizes the Mortgagee to file any other
document or instrument as may from time to time be permitted under the Code or which
the Mortgagee may otherwise deem desirable in connection with the Mortgaged Property or
any part thereof. If requested by the Mortgagee, the Mortgagor agrees to sign all such
financing statements, amendments, renewal or continuation statements and other
instruments and documents or, at the Mortgagee's option, the Mortgagee is hereby
authorized by the Mortgagor to sign all such financing statements, amendments, renewals,
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continuation statements, documents and instruments in the Mortgagor's name as the
Mortgagor's attorney-in-fact.
SECTION 1.03. (a) The Mortgagor forthwith upon the execution and delivery of
this Mortgage, and thereafter from time to time, will cause this Mortgage, the Building Loan
Agreement, and any other security instrument creating a lien or evidencing the lien hereof
upon the Chattels and/or the Intangibles and each instrument of further assurance to be
filed, registered and/or recorded in such manner and in such places as may be required by
any present or future law in order to publish notice of and fully to protect the lien hereof
upon, and the interest of the Mortgagee in, the Mortgaged Property.
(b) The Mortgagor will pay all filing, registration or recording fees, taxes
and other charges and all costs and expenses incident to the execution, acknowledgment,
delivery and recording and/or filing of this Mortgage, the other Loan Documents, any
mortgage supplemental hereto, any security instrument with respect to the Chattels or the
Intangibles, and any instrument of further assurance, and all federal, state, county and
municipal stamp taxes and other taxes, duties, impositions, assessments and charges arising
out of or in connection with the execution and delivery of the Building Loan Agreement,
the Note, this Mortgage or any Mortgage supplemental hereto, any security instrument with
respect to the Chattels and/or the Intangibles, any other Loan Document or any instrument
of further assurance.
(c) Upon Mortgagor's full satisfaction of the Indebtedness and all of
Mortgagor's other obligations under the Building Loan Agreement, the Note, this Mortgage
and the other Loan Documents, after termination of all obligations, if any, of Mortgagee to
make future advances under the Building Loan Agreement, at Mortgagor's request and at
Mortgagor's sole cost and expense (including, without limitation, the payment of all
reasonable legal fees and disbursements), Mortgagee shall execute and deliver to Mortgagor
a release of the lien of this Mortgage and termination statements as to any Uniform
Commercial Code financing statements filed by Mortgagee in respect of the Mortgaged
Property. Mortgagor shall be responsible for the recordation and filing of such release and
termination statements, and the cost thereof.
SECTION 1.04. The Mortgagor will punctually pay the principal and interest
and all other sums to become due in respect of the Note and the Building Loan Agreement
at the time and place and in the manner specified in the Building Loan Agreement, and all
such principal and interest due in respect of the Note and Building Loan Agreement is
hereby deemed an obligation due under this Mortgage.
SECTION 1.05. The Mortgagor will, so long as it is the owner of the Mortgaged
Property or any part thereof, do all things necessary to preserve and keep in full force and
effect its existence, franchises, rights and privileges as a business or stock corporation under
the laws of the state of its organization, and will comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental authority or court applicable
to the Mortgagor or to the Mortgaged Property or any part thereof.
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SECTION 1.06. All right, title and interest of the Mortgagor in and to all
extensions, improvements, betterments, renewals, substitutes and replacements of, and all
additions and appurtenances to, the Mortgaged Property hereafter acquired by, or released
to, the Mortgagor, or constructed, assembled or placed by the Mortgagor on the Premises or
any part thereof, and all conversions of the security constituted thereby, immediately upon
such acquisition, release, construction, assembling, placement or conversion, as the case
may be, and in each such case, without any further mortgage, conveyance, assignment or
other act by the Mortgagor, shall become subject to the lien of this Mortgage as fully and
completely, and with the same effect, as though now owned by the Mortgagor and
specifically described in the Granting Clause hereof, but at any and all times the Mortgagor
will execute and deliver to the Mortgagee any and all such further assurances, mortgages,
conveyances or assignments thereof as the Mortgagee may require for the purpose of
expressly and specifically subjecting the same to the lien of this Mortgage.
SECTION 1.07. (a) The Mortgagor, from time to time when the same shall
become due and payable, will pay and discharge all taxes of every kind and nature, all
general and special assessments, levies, permits, inspection and license fees, all water and
sewer rents and charges, and all other public charges whether of a like or different nature,
imposed upon or assessed against the Mortgaged Property, or any part thereof, or upon the
(revenues, rents, issues, income and profits) of the Mortgaged Property, or any part thereof,
or arising in respect of the occupancy, use or possession thereof (collectively, the
"Impositions"). The Mortgagor will, upon the request of the Mortgagee, deliver to the
Mortgagee receipts evidencing the payment of all such Impositions, or any part thereof, or
the revenues, rents, issues, income or profits thereof.
(b) The Mortgagor will pay, from time to time when the same shall
become due, all lawful claims and demands of mechanics, materialmen., laborers and others,
which claims and demands, if unpaid, might result in, or permit the creation of, a lien on
the Mortgaged Property or any part thereof, or on the revenues, rents, issues, income and
profits arising therefrom and in general will do or cause to be done everything necessary so
that the lien of this Mortgage shall be fully preserved, at the sole cost and expense of the
Mortgagor, without expense to the Mortgagee.
(c) Nothing in this Section 1.07 shall require the payment or discharge of
any obligation imposed upon the Mortgagor by this Section so long as the Mortgagor shall
in good faith and at its own cost and expense contest the same or the validity thereof by
appropriate legal proceedings that shall operate to prevent the collection thereof or other
realization thereon and the sale or forfeiture of the Premises or any part thereof to satisfy the
same; provided that during such contest the Mortgagor shall, at the option of the
Mortgagee, provide security satisfactory to the Mortgagee, assuring the discharge of the
Mortgagor's obligation hereunder and of any additional charge, penalty or expense arising
from or incurred as a result of such contest; and provided further that if, at any time,
payment of any obligation imposed upon the Mortgagor by subsection (a) of this Section
shall become necessary to prevent the delivery of a tax deed, or its equivalent, conveying the
Premises or any part of the Mortgaged Property, or any part thereof, because of non
payment, then the Mortgagor shall pay the same in sufficient time to prevent the delivery of
such tax deed or its equivalent.
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SECTION 1.08. The Mortgagor will pay any and all taxes, charges, fees and/or
levies by reason of the Mortgagee's ownership of and interest in the Building Loan
Agreement, the Note, this Mortgage or the other Loan Documents and/or resulting from
the exercise by the Mortgagee of any of its rights and/or remedies provided for under this
Mortgage, except for income taxes. The obligations
Preview
FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 Exhibit D FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 NYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is part of the instrument. The City Register will rely on the information provided by you on this page for purposes of indexing this instrument.The information on this page will control for indexing purposes in the event of any conflict with the rest of the document. 2018081000164001001E4CE3 RECORDING AND ENDORSEMENT COVER PAGE PAGE 1 OF 46 Document ID: 2018081000164001 Document Date: 07-31-2018 Preparation Date: 08-10-2018 Document Type: MORTGAGE Document Page Count: 45 PRESENTER: RETURN TO: FEDERAL STANDARD ABSTRACT, INC. (PICK-UP) HAHN & HESSEN LLP 136-36 MAIN STREET ATTN: RHONA J KISCH, ESQ FLUSHING, NY 11354 488 MADISON AVENUE 718-888-7778 NEW YORK, NY 10022 RECORDING@FEDERALS TANDARDAB STRACT. C OM FSA168-05411Q/VC PROPERTY DATA Borough Block Lot Unit Address QUEENS 374 12 Entire Lot 37-21 32ND STREET Property Type: COMMERCIAL REAL ESTATE CROSS REFERENCE DATA CRFN or DocumentID Or Year Reel Page or File Number PARTIES MORTGAGOR/BORROWER: MORTGAGEE/LENDER: SHANGRI-LA ASTORIA INC. CATHAY BANK 3626 MAIN STREET STE 3A A CALIFORNIA BANKING CORPORATION, 235 5TH FLUSHING, NY 11354 AVENUE NEW YORK, NY 10016 FEES AND TAXES Mortgage: Filing Fee: Mortgage Amount: $ 23,000,000.00 $ 0.00 Taxable Mortgage Amount: $ 23,000,000.00 NYC Real Property Transfer Tax: Exemption: $ 0.00 TAXES: County (Basic): $ 115,000.00 NYS Real Estate Transfer Tax: City (Additional): $ 258,750.00 $ 0.00 Spec (Additional): $ 57,500.00 RECORDED OR FILED IN THE OFFICE TASF: $ 0.00 OF THE CITY REGISTER OF THE 000.00 ' 14369,750.00 CITY OF NEW YORK NYCTA : $ , 4 Recorded/Filed 08-13-2018 15:24 Additional MRT: ... , City Register File No.(CRFN): TOTAL: $ 644.000.00 , 2018000270762 Recording Fee: $ 262.00 Affidavit Fee: $ 0.00 City Register Official Signature FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 rnovr9oie 4-001 eiaPD0.9. BUILDING LOAN MORTGAGE AND SECURITY AGREEMENT Dated: As of July 7/, 2018 in the amount of $23,000,000.00 from SHANGRI-LA ASTORIA INC. a New York corporation, as Mortgagor, having an office at: 3626 Main Street, Suite 3A, Flushing, New York 11354 to CATHAY BANK a California banking corporation, as Lender, as Mortgagee having an office at: 235 Fifth Avenue, New York, New York 10016 LOCATION OF PREMISES: Street Address •. 37-21 32nd Street County of .• Queens City of .- New York State of • New York Block 374 Lots 12 After recording, please return to: Hahn & Hessen LLP 488 Madison Avenue New York, New York 10022 Attention: Rhona J. Kisch, Esq. 175017/003-6944618.7 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 BUILDING LOAN MORTGAGE AND SECURITY AGREEMENT (this "Mortgage"), dated as of July ?/, 2018, by and between SHANGRI-LA ASTORIA INC., a New York corporation, having an address at 3626 Main Street, Suite 3A, Flushing, New York 11354 ("Mortgagor"), and CATHAY BANK, a national banking association, having an office at 235 Fifth Avenue, New York, New York 10016, as Lender under the Building Loan Agreement (hereinafter defined), (together with its successors in such capacity, the "Mortgagee"). All capitalized terms used but not otherwise defined in this Mortgage shall have the meanings ascribed to them in the Building Loan Agreement. WITNES SETH: WHEREAS, Mortgagor is the owner of that certain parcel of real property described in Schedule A attached hereto and made a part hereof; WHEREAS, Mortgagor and Mortgagee are parties to a Building Loan Agreement, dated as of the date hereof, (as same may be hereinafter amended, modified, restated, replaced or supplemented from time to time, the "Building Loan Agreement"), providing, inter alia, for a certain loan in the maximum principal amount of up to TWENTY-THREE MILLION AND 00/100 DOLLARS ($23,000,000.00) (the "Mortgage Amount"), as evidenced by that certain Building Loan Note, dated of even date herewith (as same may be hereinafter amended, modified, restated, replaced or supplemented from time to time, the "Note"), in favor of the Lender; WHEREAS, to secure the payment of the indebtedness under the Note in the Mortgage Amount, together with interest thereon at the interest rate or rates set forth in the Building Loan Agreement, and together with any other sums that may become due and payable hereunder or under the Building Loan Agreement, the Note or the other Loan Documents (as hereinafter defined), and to secure the performance by Mortgagor of its obligations hereunder, under the Building Loan Agreement, the Note and the other Loan Documents, Mortgagor has agreed to execute and deliver this Mortgage to Mortgagee; and WHEREAS, Mortgagor and Mortgagee wish to secure the amounts advanced or to be advanced pursuant to the Building Loan Agreement, as evidenced by the Note. Certain Definitions As used in this Mortgage, unless the context otherwise specifies or requires, the following terms shall have the meanings herein specified, such definitions to be applicable equally to the singular and to the plural forms of such terms. "Access Laws" shall have the meaning accorded such term in Section 1.24 of this Mortgage. "Additional Interest" means all payments required to be made by Borrower under a Hedging Contract. FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 "Affiliate Cotmterparty" means a Person who is an Affiliate of Mortgagee at the time such Person entered into any Hedging Contract. "Agreements" shall mean all agreements, contracts, certificates, instruments, franchises, permits, licenses, plans, specifications, warranties, guarantees, and other documents, now or hereafter entered into, and all rights therein and thereto, respecting or pertaining to the use, occupation, construction, management or operation of the Land and any part thereof and any Improvements or respecting any business or activity conducted at the Premises or any part thereof, or relating to any of the Chattels, and all right, title and interest of Mortgagor therein and thereunder, including, without limitation, the right, upon the happening of an Event of Default hereunder, to receive and collect any sums payable to Mortgagor thereunder. "Architect" shall have the meaning accorded such term in Section 1.09(e) of this Mortgage. "Building Loan" shall mean the loan from Mortgagee to Mortgagor pursuant to the Building Loan Agreement and evidenced by the Note, which is being secured by, among other things, this Mortgage. "CERCLA" shall have the meaning accorded such term in Section 1.22 of this Mortgage. "Chattels" shall mean the Equipment, the Fixtures and the Personal Property. "Claim" shall mean any action, claim, counterclaim, cross-claim, cause of action, suit, liability, demand, loss, expense, penalty, fine, judgment or other cost of any kind or nature whatsoever, including, without limitation, all fees, costs and expenses incurred in connection therewith of attorneys, consultants, contractors and experts. "Code" shall mean the Uniform Commercial Code in effect in the State of New York, as amended from time to time. "Construction Period" shall mean the period from the date hereof to the completion of the Improvements required to be built pursuant to the terms and conditions of the Building Loan Agreement. "Default Rate" shall mean the Interest Rate provided in the Building Loan Agreement plus five (5%) percent per annum, but in no event to exceed the maximum rate allowed by law. "Easements" shall mean all easements, rights-of-way or use, rights, strips and gores of land, streets, ways, alleys, passages, sewer rights, water, water courses, water rights and powers, air rights, mineral rights and development rights, and all estates, rights, titles, interests, privileges, liberties, servitudes, tenements, hereditaments and appurtenances of any nature whatsoever, in any way now or hereafter belonging, relating or pertaining to the 2 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 Land and/or the Improvements and the reversion and reversions, remainder and remainders, and all land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining the Land, to the center line thereof and all the estates, rights, titles, interest, dower and rights of dower, curtesy and rights of curtesy, property, possession, claim and demand whatsoever, both at law and in equity, of Mortgagor of, in and to the Land and/or the Improvements and every part and parcel thereof, with the appurtenances thereto. "Environmental Laws" shall have the meaning accorded such term in Section 1.22 of this Mortgage. "Equipment" shall mean all "equipment," as such term is defmed in Article 9 of the Code, now owned or hereafter acquired by Mortgagor, which is used at or in connection with the Improvements or the Land or is located thereon or therein (including, but not limited to, all machinery, equipment, furnishing, and electronic data-processing and other office equipment now owned or hereafter acquired by the Mortgagor and any and all additions, substitutions and replacements of any of the foregoing), together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto. Notwithstanding the foregoing, Equipment shall not include any property belonging to tenants under leases at the Premises, except to the extent that the Mortgagor shall have any rights or interest therein. "Events of Default" shall mean the events and circumstances described as such in Section 2.01 hereof. "Executive Order" shall have the meaning accorded such term in Section 1.26 of this Mortgage. "Expenses" shall mean all out-of-pocket fees, charges, costs and expenses of any nature whatsoever incurred at any time and from time to time (whether before or after an Event of Default) by Mortgagee in making, funding, administering or modifying the Building Loan, in negotiating or entering into any "workout" of the Building Loan, or in exercising or enforcing any rights, powers and remedies provided in this Mortgage or any of the other Loan Documents, including, without limitation, reasonable attorneys' fees and expenses, court costs, receiver's fees, management fees and costs incurred in the repair, maintenance and operation of, or taking possession of, or selling, all or any part of the Mortgaged Property. "Fixtures" shall mean all Equipment now owned, or the ownership of which is hereafter acquired, by Mortgagor which is so related to the Land and/or Improvements that it is deemed fixtures or real property under the law of the particular state in which the Equipment is located, including, without limitation, all building or construction materials intended for construction, reconstruction, alteration or repair of or installation at the Premises, construction equipment, appliances, machinery, plant equipment, fittings, apparatuses, fixtures and other items now or hereafter attached to, installed in or used in connection with (temporarily or permanently) any of the Premises, including, but not limited to, engines, devices for the operation of pumps, pipes, plumbing, cleaning, call and 3 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 sprinkler systems, fire extinguishing apparatuses and equipment, heating, ventilating, plumbing, laundry, incinerating, electrical, air conditioning and air cooling equipment and systems, gas and electric machinery, appurtenances and equipment, pollution control equipment, security systems, disposals, dishwashers, refrigerators and ranges, recreational equipment and facilities of all kinds, and water, gas, electrical, storm and sanitary sewer facilities, utility lines and equipment (whether owned individually or jointly with others, and, if owned jointly, to the extent of the Mortgagor's interest therein) and all other utilities whether or not situated in Easements, all water tanks, water supply, water power sites, fuel stations, fuel tanks, fuel supply, and all other structures, together with all accessions, appurtenances, additions, replacements, betterments and substitutions for any of the foregoing and the proceeds thereof. Notwithstanding the foregoing, "Fixtures" shall not include any property which tenants are entitled to remove pursuant to leases at the Premises, except to the extent that Mortgagor shall have any right or interest therein. "Guarantor" or "Guarantors" shall mean the party or parties identified as such in the Building Loan Agreement. "Hazardous Materials" shall have the meaning accorded such term in Section 1.22 of this Mortgage. "fledging Contract" means each ISDA Master Agreement and schedules and related confirmation and/or any other documents, instruments, or agreements executed to further evidence or secure the Hedging Obligations as the same may be hereafter amended, restated, renewed, replaced, supplemented or otherwise modified from time to time. "Hedging Counterparty" — Any Affiliate Counterparty or any other Affiliate of Mortgagee, or other party approved by Mortgagee, under any Hedging Contract. "Hedging Obligations" means all obligations of Borrower to Mortgagee or any Affiliate Counterparty or any other Affiliate of Mortgagee, or other party approved by Mortgagee, under any agreement, contract or transaction that constitutes a "swap" within the meaning of Section la(47) of the Commodity Exchange Act and shall include any interest rate swap transactions, basis swaps, forward rate transactions, commodity swaps, commodity options, equity or equity index swaps, equity or equity index options, bond options, interest rate options, foreign exchange transactions, cap transactions, floor transactions, collar transactions, forward transactions, currency swap transactions, cross- currency rate swap transactions, currency options or similar agreements including the Hedging Contracts. "Impositions" shall have the meaning accorded such term in Section 1.07 of this Mortgage. "Impound Account" shall have the meaning accorded such term in Section 1.09(c) of this Mortgage. 4 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 "Improvements" shall mean all structures, buildings, additions, extensions, modifications and all other improvements of any kind whatsoever, and replacements of any of the foregoing, now or hereafter located at or upon the Land. "Insurance Policies" shall have the meaning accorded such term in Section 1.09 of this Mortgage. "Indebtedness" shall have the meaning accorded such term in the Granting Clause of this Mortgage. "Intangibles" shall mean all "general intangibles" (as such quoted term is defined in the Code) in any way relating to the Premises, or any part thereof, and that Mortgagor owns, including, without limitation, all intellectual property, goodwill and books and records relating to the business operated or to be operated on the Premises or any part thereof, together with all unearned premiums, accrued, accruing or to accrue under all insurance policies now or hereafter obtained by the Mortgagor insuring the Mortgaged Property and all rights and interest of Mortgagor thereunder. "Land" shall mean the real property described in Schedule A attached hereto and by this reference, made a part hereof, including, without limitation, all of the air space, easements, rights, privileges, royalties and appurtenances thereunto belonging or in anywise appertaining thereto, and all of the estate, right, title, interest, claim or demand whatsoever of Mortgagor therein and in the streets, alleys and ways adjacent thereto, either at law or in equity, in possession or expectancy, now or hereafter acquired. "Loan Documents" shall mean this Mortgage, the Building Loan Agreement, the Note, the Guaranty, that certain ADA and Environmental Indemnity, dated of even date herewith, executed and delivered by Mortgagor among others, that certain Assignment of Leases and Rents, dated of even date herewith, executed and delivered by Mortgagor in favor of Mortgagee, all Uniform Commercial Code financing statements in respect of the Mortgaged Property and all other documents, agreements, instruments, certificates, title policies and the like securing and/or evidencing the Mortgage Amount and other Indebtedness and/or executed and/or delivered by or on behalf of the Mortgagor in connection with the closing of the Building Loan or at any time thereafter, including without limitation all Loan Documents as such term is defined in the Loan Agreement. "Major Work" shall have the meaning accorded such term in Section 1.09(e) of this Mortgage. "Mortgaged Property" shall have the meaning accorded such term in the Granting Clause of this Mortgage. "Mortgagor Equity Owner" shall have the meaning accorded such term in Section 1.25 of this Mortgage. 5 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 "Person" shall mean an individual, a corporation, a partnership, a joint venture, a limited liability company, a trust, an unincorporated association, any governmental authority or any other entity. "Personal Property" shall mean all furniture, furnishings, objects of art, machinery, goods, tools, supplies, appliances, contract rights, accounts, including, without limitation, all bank accounts maintained by or on behalf of Mortgagor, the Impound Account (as hereafter defined), if any, and any other accounts established pursuant to any of the Loan Documents, accounts receivable, franchises, licenses, certificates and permits, and all other personal property of any kind or character whatsoever (as defined in and subject to the provisions of the Code), other than Fixtures, which are now or hereafter owned by Mortgagor and which are located within or about the Premises, together with all accessories, replacements and substitutions thereto or therefor and the proceeds thereof, and the right, title and interest of Mortgagor in and to any of the Personal Property which may be subject to the lien of any security interest, as defined in the Code, superior to the lien of this Mortgage, and all proceeds and products of the foregoing. "Power of Sale" shall mean the right, power and authority of the Mortgagee to sell or cause the sale of the Mortgaged Property and/or a part or parts thereof, at a public sale or auction, after any Event of Default and in accordance with and pursuant to Article 14 of the Real Property Actions and Proceedings Laws of the State of New York, as the same may hereafter be modified or amended, and/or under and pursuant to any other rules, laws, regulations now in effect and/or hereafter enacted, which provides for or enables the property encumbered by a mortgage to be sold by a mortgagee and/or its agents and/or representatives in a public and/or private non-judicial sale. "Premises" shall mean, collectively, the Land and the Improvements. "Prohibited Person" shall have the meaning accorded such term in Section 1.26 of this Mortgage. "Transfer" shall have the meaning accorded such term in Section 1.25 of this Mortgage. "Work" shall have the meaning accorded such term in Section 1.09(e) of this Mortgage. All terms of this Mortgage which are not defined above shall have the respective meanings accorded such terms in this Mortgage. Granting Clause NOW, THEREFORE, Mortgagor and Mortgagee agree that Mortgagor, in consideration of the premises and in order to secure payment of the principal of the Note and the interest and any and all other sums payable on the Note, under this Mortgage or the other Loan Documents, and all Hedging Obligations (excluding, in each case with respect to any Loan Party, any Excluded Hedging Obligations of such Loan Party) as well as, 6 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 without limitation, any and all Obligations (as such term is defined in the Building Loan Agreement), Additional Interest, all loans, advances, indebtedness, notes, liabilities, and all other amounts, in each case, liquidated or unliquidated, owing by Mortgagor to Mortgagee or any Affiliate Counterparty or any other Affiliate of Mortgagee any time, of each and every kind, nature and description, whether arising under this Mortgage or otherwise, and whether secured or unsecured, direct or indirect (that is, whether the same are due directly by Mortgagor to Mortgagee or any Affiliate Counterparty or any other Affiliate thereof; or are due indirectly by Mortgagor to Mortgagee or any Affiliate Counterparty or any other Affiliate thereof as endorser, guarantor or other surety, or as borrower of obligations due third Persons which have been endorsed or assigned to Mortgagee or any Affiliate Counterparty or any other Affiliate thereof, or otherwise), absolute or contingent, due or to become due, now existing or hereafter arising or contracted, including, without limitation, payment when due of all amounts outstanding respecting any of the Loan Documents or any Hedging Contract and the performance and observance of all the other provisions hereof, of the Note, the other Loan Documents and any Hedging Contract (all of the aforesaid are hereinafter collectively, the "Indebtedness"), hereby gives, grants, mortgages, bargains, sells, warrants, aliens, remises, releases, conveys, assigns, transfers, hypothecates, deposits, pledges, sets over and confirms unto Mortgagee for itself and as agent for any Affiliate Counterparty or any other Affiliate holding any Obligations, and its successors and assigns, except for those permitted encumbrances and other matters set forth on Schedule B of the title insurance policy insuring the lien of this Mortgage (collectively, the "Permitted Encumbrances"), all its estate, right, title and interest in, to and under any and all of the following described property (collectively, the "Mortgaged Property"), whether now owned or held or hereafter acquired: (a) the Land; (b) the Improvements; (c) the Easements; (d) the Chattels; (e) the Intangibles; (f) the Agreements; (g) all awards or payments, including interest thereon, which may heretofore and hereafter be made with respect to the Premises, whether from the exercise of the right of eminent domain or condemnation (including but not limited to any transfer made in lieu of or in anticipation of the exercise of the right), or for a change of grade, or for any other injury to or decrease in the value of the Premises; (h) all proceeds in respect of the Mortgaged Property under any insurance policies covering the Mortgaged Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments, or settlements made in lieu thereof, for damage to the Mortgaged Property; 7 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 (i) all refunds, rebates or credits in connection with reduction in real estate taxes and assessments charged against the Premises as a result of tax certiorari or any applications or proceedings for reduction or otherwise; (j) all leases and other agreements affecting the use, enjoyment or occupancy of the Premises or any part thereof heretofore or hereafter entered into (collectively, the "Leases") and all right, title and interest of Mortgagor therein and thereunder, including, without limitation, cash, letters of credit or securities deposited thereunder to secure the performance by the lessees of their obligations thereunder and all rents, additional rents, revenues, income, issues and profits (including all oil and gas or other mineral royalties and bonuses) from the Land and the Improvements (collectively, the "Rents") and all proceeds from the sale or other disposition of the Leases; (k) the right, in the name and on behalf of Mortgagor, to appear in and defend any action or proceeding brought with respect to the Mortgaged Property and to commence any action or proceeding to protect the interest of the Mortgagee in the Mortgaged Property; and (I) all proceeds of any of the foregoing converted into cash, property, claims or otherwise. TO HAVE AND TO HOLD unto the Mortgagee and its successors and assigns, forever to its and their own proper use and behoof; and the Mortgagor also does for itself, its successors and assigns, covenant with the Mortgagee, and its successors and assigns, that at and until the ensealing of these presents it is well seized of the Premises in fee simple, and has good right to bargain and sell the same and that the same are free from all encumbrances whatsoever except for Permitted Encumbrances. ARTICLE I. Particular Covenants of the Mortgagor The Mortgagor represents, warrants, covenants and agrees as follows: SECTION 1.01. The Mortgagor represents and warrants that it has a good and marketable title to an indefeasible fee estate in the Premises subject to no lien, charge or encumbrance, other than the Permitted Encumbrances; that it will own the Chattels free and clear of liens and claims; that this Mortgage is and will remain a valid and enforceable first lien on the Mortgaged Property subject only to the exceptions referred to above or in Schedule A; that the execution and delivery of this Mortgage, the Note and the other Loan Documents has been duly authorized by the Mortgagor and that there is no provision in any document relating to Mortgagor that evidences or establishes the existence of the Mortgagor requiring further consent for such action by any other entity or person; that it is duly organized, validly existing and is in good standing under the laws of the state of its organization; that it has (i) all necessary licenses, authorizations, registrations, permits and/or approvals and (ii) full power and authority to own its properties and carry on its business as presently conducted and the execution and delivery by it of and performance of 8 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 its obligations under this Mortgage, the Note and the other Loan Documents will not result in the Mortgagor being in default under any provisions of any document which evidences or establishes the existence of the Mortgagor or of any mortgage, credit or other agreement to which the Mortgagor is a party or by which it is bound or that affects the Mortgagor or the Premises, or any part thereof; that it will preserve such title, and will forever warrant and defend the same to the Mortgagee and its successors and assigns, and will forever warrant and defend the validity and priority of such lien hereof against the claims of all persons and parties whomsoever subject only to the Permitted Encumbrances. SECTION 1.02. (a) The Mortgagor will, at the sole cost and expense of the Mortgagor, and without expense to the Mortgagee, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignment, transfers and assurances as the Mortgagee shall from time to time reasonably require, for the better assuring, conveying, mortgaging, assigning, transferring and confirming unto the Mortgagee the property and rights hereby conveyed, mortgaged or assigned or intended now or hereafter so to be, or that the Mortgagor may be or may hereafter become bound to convey, mortgage or assign to the Mortgagee, or for more effectively carrying out the intention or facilitating the performance of the terms of this Mortgage, or for recording this Mortgage and, on demand, will execute and deliver and hereby authorizes the Mortgagee to execute and record in the name of the Mortgagor to the extent it may be lawful to do so, chattel mortgages or comparable security instruments to evidence more effectively the lien hereof upon the Mortgaged Property or any part thereof. The Mortgagor will also, at the Mortgagee's request, sign any affidavits or other documents or instruments which may be necessary to maintain the priority of the lien of this Mortgage with respect to the Mortgaged Property or any part thereof, or to release or enforce such lien, including but not limited to any amendments, corrections, deletions or additions to this Mortgage. (b) The Mortgagor expressly agrees, intending that the Mortgagee rely thereon, that this Mortgage shall also constitute a "security agreement," as such term is defined in the Code with respect to the Chattels, Intangibles and other Mortgaged Property. Mortgagor further expressly agrees, intending that Mortgagee rely thereon, that this Mortgage, to the extent permitted by law, shall also constitute a "financing statement," as such term is defined in the Code with respect to the Fixtures. By its execution of this Mortgage, the Mortgagor hereby authorizes the Mortgagee to file and/or record this Mortgage as a security instrument and fixture filing with respect to the Mortgaged Property or any part thereof, and authorizes the Mortgagee to file one or more financing statements, amendments, fixture filings, renewals or continuation statements with respect to the Mortgaged Property or any part thereof, and authorizes the Mortgagee to file any other document or instrument as may from time to time be permitted under the Code or which the Mortgagee may otherwise deem desirable in connection with the Mortgaged Property or any part thereof. If requested by the Mortgagee, the Mortgagor agrees to sign all such financing statements, amendments, renewal or continuation statements and other instruments and documents or, at the Mortgagee's option, the Mortgagee is hereby authorized by the Mortgagor to sign all such financing statements, amendments, renewals, 9 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 continuation statements, documents and instruments in the Mortgagor's name as the Mortgagor's attorney-in-fact. SECTION 1.03. (a) The Mortgagor forthwith upon the execution and delivery of this Mortgage, and thereafter from time to time, will cause this Mortgage, the Building Loan Agreement, and any other security instrument creating a lien or evidencing the lien hereof upon the Chattels and/or the Intangibles and each instrument of further assurance to be filed, registered and/or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the interest of the Mortgagee in, the Mortgaged Property. (b) The Mortgagor will pay all filing, registration or recording fees, taxes and other charges and all costs and expenses incident to the execution, acknowledgment, delivery and recording and/or filing of this Mortgage, the other Loan Documents, any mortgage supplemental hereto, any security instrument with respect to the Chattels or the Intangibles, and any instrument of further assurance, and all federal, state, county and municipal stamp taxes and other taxes, duties, impositions, assessments and charges arising out of or in connection with the execution and delivery of the Building Loan Agreement, the Note, this Mortgage or any Mortgage supplemental hereto, any security instrument with respect to the Chattels and/or the Intangibles, any other Loan Document or any instrument of further assurance. (c) Upon Mortgagor's full satisfaction of the Indebtedness and all of Mortgagor's other obligations under the Building Loan Agreement, the Note, this Mortgage and the other Loan Documents, after termination of all obligations, if any, of Mortgagee to make future advances under the Building Loan Agreement, at Mortgagor's request and at Mortgagor's sole cost and expense (including, without limitation, the payment of all reasonable legal fees and disbursements), Mortgagee shall execute and deliver to Mortgagor a release of the lien of this Mortgage and termination statements as to any Uniform Commercial Code financing statements filed by Mortgagee in respect of the Mortgaged Property. Mortgagor shall be responsible for the recordation and filing of such release and termination statements, and the cost thereof. SECTION 1.04. The Mortgagor will punctually pay the principal and interest and all other sums to become due in respect of the Note and the Building Loan Agreement at the time and place and in the manner specified in the Building Loan Agreement, and all such principal and interest due in respect of the Note and Building Loan Agreement is hereby deemed an obligation due under this Mortgage. SECTION 1.05. The Mortgagor will, so long as it is the owner of the Mortgaged Property or any part thereof, do all things necessary to preserve and keep in full force and effect its existence, franchises, rights and privileges as a business or stock corporation under the laws of the state of its organization, and will comply with all regulations, rules, ordinances, statutes, orders and decrees of any governmental authority or court applicable to the Mortgagor or to the Mortgaged Property or any part thereof. 10 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 SECTION 1.06. All right, title and interest of the Mortgagor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property hereafter acquired by, or released to, the Mortgagor, or constructed, assembled or placed by the Mortgagor on the Premises or any part thereof, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, conveyance, assignment or other act by the Mortgagor, shall become subject to the lien of this Mortgage as fully and completely, and with the same effect, as though now owned by the Mortgagor and specifically described in the Granting Clause hereof, but at any and all times the Mortgagor will execute and deliver to the Mortgagee any and all such further assurances, mortgages, conveyances or assignments thereof as the Mortgagee may require for the purpose of expressly and specifically subjecting the same to the lien of this Mortgage. SECTION 1.07. (a) The Mortgagor, from time to time when the same shall become due and payable, will pay and discharge all taxes of every kind and nature, all general and special assessments, levies, permits, inspection and license fees, all water and sewer rents and charges, and all other public charges whether of a like or different nature, imposed upon or assessed against the Mortgaged Property, or any part thereof, or upon the (revenues, rents, issues, income and profits) of the Mortgaged Property, or any part thereof, or arising in respect of the occupancy, use or possession thereof (collectively, the "Impositions"). The Mortgagor will, upon the request of the Mortgagee, deliver to the Mortgagee receipts evidencing the payment of all such Impositions, or any part thereof, or the revenues, rents, issues, income or profits thereof. (b) The Mortgagor will pay, from time to time when the same shall become due, all lawful claims and demands of mechanics, materialmen., laborers and others, which claims and demands, if unpaid, might result in, or permit the creation of, a lien on the Mortgaged Property or any part thereof, or on the revenues, rents, issues, income and profits arising therefrom and in general will do or cause to be done everything necessary so that the lien of this Mortgage shall be fully preserved, at the sole cost and expense of the Mortgagor, without expense to the Mortgagee. (c) Nothing in this Section 1.07 shall require the payment or discharge of any obligation imposed upon the Mortgagor by this Section so long as the Mortgagor shall in good faith and at its own cost and expense contest the same or the validity thereof by appropriate legal proceedings that shall operate to prevent the collection thereof or other realization thereon and the sale or forfeiture of the Premises or any part thereof to satisfy the same; provided that during such contest the Mortgagor shall, at the option of the Mortgagee, provide security satisfactory to the Mortgagee, assuring the discharge of the Mortgagor's obligation hereunder and of any additional charge, penalty or expense arising from or incurred as a result of such contest; and provided further that if, at any time, payment of any obligation imposed upon the Mortgagor by subsection (a) of this Section shall become necessary to prevent the delivery of a tax deed, or its equivalent, conveying the Premises or any part of the Mortgaged Property, or any part thereof, because of non payment, then the Mortgagor shall pay the same in sufficient time to prevent the delivery of such tax deed or its equivalent. 11 FILED: QUEENS COUNTY CLERK 02/08/2024 06:39 PM INDEX NO. 703084/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/08/2024 SECTION 1.08. The Mortgagor will pay any and all taxes, charges, fees and/or levies by reason of the Mortgagee's ownership of and interest in the Building Loan Agreement, the Note, this Mortgage or the other Loan Documents and/or resulting from the exercise by the Mortgagee of any of its rights and/or remedies provided for under this Mortgage, except for income taxes. The obligations